9911796707
TMI Blog2019 (7) TMI 1535X X X X Extracts X X X X X X X X Extracts X X X X ..... 15649) against whom initiation of Corporate Insolvency Resolution Process has been prayed for, was incorporated on 10.03.2011, having its registered office at D-25, Vivek Vihar, Delhi - 110095. Since the registered office of the Respondent Corporate Debtor is in New Delhi, this Tribunal has territorial jurisdiction over the NCT of Delhi and is also the Adjudicating Authority in relation to the prayer for initiation of Corporate Insolvency Resolution Process in respect of Respondent Corporate Debtor under sub-section (1) of Section 60 of the Code. 3. The Petitioners have proposed the name of Mr. Prabhjit Singh Soni for appointment as Interim Resolution Professional having registration number - IBBI/IPA-002/IP-N00065/2017-18/10143 resident of GG -I/144/C, Vikas Puri, Near PVR New Delhi - 110018 with email Id. [email protected]. Mr. Prabhjit Singh Soni has agreed to accept appointment as the interim resolution professional and has signed a written communication dated 16.08.2018, in Form-2 in terms of Rule 9(1) of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. There is a declaration made by him that no disciplinary proceedings are pending agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment and interest and belatedly offered fit out possession on 25 July 2018, but sought to back date the possession date to 14 April 2018. 10. The Financial Creditor has also issued a legal notice dated 31 July 2018, to the Corporate Debtor demanding refund of the amount paid and interest at 12% per annum on the total cost of the Flat in terms of the Scheme. However, no response has been received to date to the legal notice. As at 21 August 2018, a total amount of Rs. 91,25,454 is due to the Financial Creditor comprising refund of Rs. 49,48,702 and Rs. 41,76,752 towards interest at 12% per annum on the total cost of the Flat from 20 October 2015, until 20 August 2018. The Financial Creditor is entitled to further interest until the date of payment. 11. It is further stated in the application that the Corporate Debtor has defaulted by not granting a refund to the Financial Creditor of the amounts paid to the Corporate Debtor towards purchase of the Flat along with interest at 12% per annum on the total cost of the Flat. The Corporate Debtor has breached the terms of the Allotment Letter by not permitting the Financial Creditor to enforce the Scheme. The Corporate Debtor has furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk to the Bank and not to the petitioner. 17. The respondent in its reply has denied that there is any default which has been committed by the respondent in fact and contended that no default has been committed by the respondent. In fact, it has been alleged that the petitioner himself is the wilful defaulter as explained in the brief facts. It is specifically denied that the purchase of the Flat contained a special buy back scheme (the "Scheme" whereby the Financial Creditor had the option to surrender the Flat at the time of possession, and be entitled to a refund of the total amount deposited and premium calculated at 12% interest over the total cost of the apartment. The Scheme further provided for grant of interest to buyers on the entire cost of the Flat along with refund of the amount paid if the Flat had not been constructed within the stipulated period. Being induced by the scheme and the representations of the Corporate Debtor, the Financial Creditor agreed to book the Flat. It is specifically denied that the Respondent acknowledged the delay in granting possession and stated that possession would be granted in December 2017. 18. We have heard learned counsel for the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s sold on non-recourse basis; (f) any amount raised under any other transaction, including any forward sale or purchase agreement, having the effect of a borrowing; Explanation - For the purposes of this sub-clause- (I) Any amount raised from an allottee under a real estate project shall be deemed to be an amount having the commercial effect of a borrowing and (II) The expressions, "allottee" and real estate project shall have the meanings respectively assigned to them in clauses (d) and (zn) of Section 2 of the Real Estate (Regulation and Development) Act, 2016 (16 of 2016); (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price and for calculating the value of any derivative transaction, only the market value of such transaction shall be taken into account; (h) any counter-indemnity obligation in respect of a guarantee, indemnity bond, documentary letter of credit or any other instrument issued by a bank or financial institution; (i) the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) and (h) of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Corporate Insolvency Resolution Process by Financial Creditor is regulated by the provision engrafted in Section 7 of I&B Code, which reads as under: "7. Initiation of corporate insolvency resolution process by financial creditor.- (1) A financial creditor either by itself or jointly with other financial creditors may file an application for initiating corporate insolvency resolution process against a Corporate Debtor before the Adjudicating Authority when a default has occurred. Explanation. - For the purposes of this sub-section, a default includes a default in respect of a financial debt owed not only to the applicant financial creditor but to any other financial creditor of the Corporate Debtor. (2) The financial creditor shall make an application under sub-section (1) in such form and manner and accompanied with such fee as maybe prescribed. (3) The financial creditor shall, along with the application furnish- (a) record of the default recorded with the information utility or such other record or evidence of default as maybe specified; (b) the name of the resolution professional proposed to act as an interim resolution professional; and (c) any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28. The applicant financial creditor has paid around Rs. 19 lakh initially for the booking of the flat and thereafter Rs. 30 lac were paid by bank to the respondent after demand being raised. Therefore, it can be seen that the applicant itself has paid around Rs. 19 lac to respondent in terms of the agreement since the respondent itself has failed to give possession of flat within stipulated time the applicant is liable to get refund of amount with interest. 29. In the present case Financial debt is outstanding since the year 2017. The Corporate Debtor has not denied the claim of Petitioner and the amount of default exceeds much more than 1 lakh. In view of Section 4 of the Code, the moment default is Rupees one lakh or more, the petition to trigger Corporate Insolvency Resolution Process under the Code is maintainable. There is sufficient material on record to conclude that Respondent Corporate Debtor has committed default in repayment of the financial debt. 30. Under sub-section 5(a) of Section 7 of the code, the application filed by the applicant financial creditor has to be admitted on satisfaction that: 1. Default has occurred. 2. Application is complete, and 3. No d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court of law, tribunal, arbitration panel or other authority; (b) transferring, encumbering, alienating or disposing of by the Corporate Debtor any of its assets or any legal right or beneficial interest therein; (c) any action to foreclose, recover or enforce any security interest created by the Corporate Debtor in respect of its property including any action under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002; (d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the Corporate Debtor." 36. It is made clear that the provisions of moratorium shall not apply to transactions which might be notified by the Central Government or the supply of the essential goods or services to the Corporate Debtor as maybe specified, are not to be terminated or suspended or interrupted during the moratorium period. In addition, as per the Insolvency and Bankruptcy Code (Amendment) Act, 2018, which has come into force w.e.f. 06.06.2018, the provisions of moratorium shall not apply to the surety in a contract of guarantee to the corporate debtor in terms of Section 14 (3) (b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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